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On
August 27 2010 Kenya promulgated a progressive Constitution
whose vision is social democracy. It’s a vision of the promotion and protection
of the whole gamut of human rights; the equitable distribution of political
power and the resources of society; and the creation of a nation out of different
ethnic groupings. The Constitution aims to bring an end to the organization of
politics through divisions; mitigate the protection of private property in
land; cement agreement on national values and principles; promote integrity in
public and private leadership; and build depersonalized national institutions.

The
struggle to implement the progressive vision of this Constitution continues
today. The elite forces of the status quo who found this vision unacceptable are
resisting its implementation at every step. As the latest stage in this
process, Kenya will hold new elections on August 8, 2017. I was Chief Justice and President of the Supreme Court of
Kenya from 2011 to 2016, so I’ve observed and participated in this process first-hand.
Given the efforts of the political elite to resist the implementation of the
Constitution, I became convinced that the Judiciary had to play a pivotal role
in defending and advancing it. We consciously developed a jurisprudence that
promoted the Constitution’s robust implementation, and in that way the
Judiciary became a political actor.

For
almost the entire period since Kenya’s independence on December 12, 1963, the
country’s politics have been organized around divisions: ethnic, religious, racial,
regional, clan and gender-based, generational, pastoralists versus
agriculturalists, and most recently, divisions driven by xenophobia. The Kenyan
elite have become so adept at the politics of division that elections are never
about issues, and voters seem unable or unwilling to shed the blinkers of these
differences.

Academics
and activists on both side of the class divide shamelessly talk of the ‘tyranny
of numbers:’ out of the 43 ethnic
communities in Kenya, the ‘Big Five’ command over 70 per cent of the electoral
vote—Kikuyu, Kalenjin, Luo, Kamba and Luhya. The politics
of division are reflected in concrete terms in ethnic coalitions that are put
together by the barons of these five communities. At the moment three of them
are members of the National Super Alliance, or NASA (Luo, Kamba and Luhya), while the other two form the Jubilee
coalition (Kikuyu and Kalenjin). The graveyard
of acronyms of Kenyan political parties since independence would make for grim
but humorous reading.

There
is one pillar in the Constitution that gives me optimism: devolution, which
entails the equitable distribution of political power and resources. Kenya has
47 counties with governments led by elected Governors. The Constitution decrees
that 15 per cent of all national resources must be shared between these 47
counties. The Kenyan Senate has come up with an equalization formula that
favors counties that hitherto have been marginalized.

Notwithstanding
the very real issue of decentralized corruption, reports from these marginalized
counties are encouraging. I believe that anti-corruption movements are gaining
ground from the margins of these counties to safeguard the resources that are devolved
to them. Demands for more resources are being made from the Center in the form
of the Executive, Parliament, the Treasury and the Central Bank, since these
national institutions have not justified their 85 per cent lion’s share.

Devolution,
more resources for counties, and weakening the Center in financial matters are
issues that will take center stage in the forthcoming elections. This will be a
contest in which poverty eradication and the equitable distribution of
resources should feature prominently. If so, this would be a great leap forward
in the quest to strengthen Kenyan democracy.

In
this respect I can already see the beginnings of a politics of humanity that is
based on the equitable distribution of resources. Social movements in marginalized
counties are gaining strength. Public participation in the use of resources is
robust. Debates are taking place around the material needs of the people like education,
employment, health, sanitation, housing, environment, foreign investment and
corruption. There is a great imagination and consciousness emerging from the
margins that sees the prudent use of
resources as one of the keys to poverty-eradication.

I have been cautioned
about creating too much hope from what I see in marginalized counties. I have been warned not to
create a fetish out of the Constitution, or of devolution. All I can say with
certainty is that both ‘trains have left the station,’ and they will not be
easily derailed.

This
is not the first time we have heard of transformation from the margins. The
Chinese revolutionaries talked of surrounding the cities from the rural areas,
their margins. They talked of solidarities between workers and peasants on the
basis of the material interests of their lives and livelihoods. And reading Nina
Eliasoph’s recent Transformation piece on the United States reminds me that
such debates are happening right across the world.

I
have no issue with improving access to consumer goods, jobs and services like
health and education. I love them. What I hate is their inequitable
distribution. Eliasoph touches on the same issue in her insistence that politics
needs to “offer a vision of society in which everyone could enjoy things that
look like the privilege of elites…a vision that shows how lessening the gap
between the rich and poor” could make these goods and services accessible to
all.

In
both Kenya and the US, the challenge is to resist systems that put profits
before people. This challenge is centrally concerned with the equitable
distribution of resources. It’s about mitigating the harshness of systems that
create extreme inequalities among people. I believe such visions are reflected
in paradigms of human rights, social justice, and social democracy. In
practical terms it is about having a society in which everybody can enjoy at
the minimum the rights, entitlements and opportunities that are currently enjoyed
by elites.

History
records numerous experiments in what was called welfare capitalism and social
democracy after World War Two. In America Eliasoph mentions the New Deal and
the Great Society of Presidents Roosevelt and Johnson respectively. I believe
one could add the meager reinforcement of such state-driven projects in the US through
corporate social responsibility and social justice philanthropy, which attempt
to mitigate the costs and concentrated power of corporatism.

Eliasoph
is right. Such solidarities are possible notwithstanding divisions in society
if “white rural people’s suffering” as she puts it is addressed as a political
issue alongside the suffering of people of color and low-income communities in
cities. Institutionalized racism might slowly be dismantled by a politics of humanity
in which resources are equitably distributed, and in which poverty knows no
color.

I
know the challenges that stand in the way of this potentially-transformative
optimism. Neo-liberalism and the engines that put profits before people provide
serious barriers to progress. Even in Kenya, devolution faces serious
challenges from neo-liberalism from the elites who benefit from it and its
agents.

I
want, however, to join my imagination with that of Eliasoph and others in
projects of solidarity across national borders. This idea is not new. The slogan
of the World Social
Forum is “Another World is Possible.” The Indian activist Arundhati
Roy goes even further by telling us that “Another world is
not only possible, she is on her way. On a quiet day, I can hear her breathing.”We must not give
up such revolutionary optimism. It may get us some important concessions from
neo-liberalism—and possibly much, much more.

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